November 8, 2012 § 3 Comments

There’s no question in my mind that there are many cases pending in my court that should — and could — be settled by mediation.

So why don’t I order more cases to mediation? Well, to put in in blunt terms, it’s lack of faith.

In my experience as an attorney in mediation, I found that neither I nor counsel opposite had much of an idea of how to prepare for mediation, or how to prepare our clients for mediation, or what strategies and tactics we should and could use to maximize the chances for success. So that’s the source of my lack of faith.

I also found, in the few domestic mediations in which I was involved as an attorney, that there was some infuriating game-playing. In one case I had, co-counsel and I persuaded our doctor-client, defendant in a divorce, to make a quite reasonable (he thought overly-generous) opening offer. He and we took time out of a busy day to travel to Jackson for the event. We made our initial offer, and the mediator remarked that it was more than he expected. He then disappeared to confer with the other side, only to return an hour later with a counteroffer for more than twice what we had offered. We calmed our client down and persuaded him to give a little more ground toward the middle. Again, the mediator left and returned another hour later with a counteroffer more than three times our initial offer. We were negotiating apart, instead of closer together. I could go on through the increasingly frustrating day, but I can sum it up by saying that we left finally for a late lunch and decided not to return for more of that treatment. Oh, and that exercise in futility cost my unhappy client a couple of thousand dollars. 

So I look at mediation in domestic cases with a somewhat jaundiced eye.

But I’m not ready to discard it. My theory is that if lawyers understood how to maximize the process, then they could use it to their clients’ benefit.

So, with that in mind, I invited attorney and mediator Lydia Quarles to do a series of posts for this blog with tips and ideas for attorneys on how to approach mediation, how to prepare your client for it, how to prepare yourself for it, and how to work with your mediator.

Beginning next week, we’ll have the benefit of Lydia’s five-part series on mediation in domestic cases.

I’ve suggested before, and I’ll repeat it here: Someone with mediation expertise should offer a CLE on how lawyers can prepare themselves and their clients for mediation, how they can make money doing it, some strategies, tactics and approaches, and how mediation can benefit lawyers’ practices. Every mediation segment in CLE’s I attended focused on what a mediator does. We know that. What lawyers need to know is how to do their job vis a vis the process.



  • randywallace says:

    I am really looking forward to this series. Mediation certainly has potential in domestic cases, but the mediation process in a domestic case is a vastly different animal than the mediation of an injury case. Our resolution rates are basically flip flopped in one vs. the other.

  • R. E. Mongue says:

    I agree whole-heartedly on the role of preparation in successful mediation. Our undergraduate ADR course at Ole Miss focuses the paralegal’s role in preparing the file, the attorney, and the client for mediation. One major difficulty is the perception that because mediation is “easier” than trial no preparation is necessary. As you point out, this is seldom the case.

    I have a bit more to go on my present work-in-progress, but hope to make the following book a manual for law office preparation for all forms of ADR. When (and if) that time comes I hope I can sit down with you for your insight as an attorney and a judge.

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